Is there an American trait that is more “American” than any other?
Rugged individualism, a strong work ethic, maybe, our directness and informality?
Alexis de Tocqueville, in his landmark work Democracy in America, said that the trait that struck him was our ability to voluntarily come together for the “Common Good.”
Nearly 200 years later, are we still honoring this tradition? Maybe not.
If you feel like you’re more disconnected from your fellow Americans than ever before, it’s not your imagination. It’s well documented that American culture has seen a long-term decline in civic engagement, volunteering, and even the number of people making philanthropic donations.
It shouldn’t come as a surprise that this phenomenon goes hand in hand with a widespread decline in social trust. Because social trust helps strengthen forms of engagement that build relationships and connections with our fellow Americans, its decline has broader cultural consequences. Put simply, freedom of assembly is the linchpin that holds American culture together. As we are coming apart, it appears we are becoming less interested in joining groups, which may also be affecting attitudes toward free speech.
The Supreme Court has long recognized the right to assembly as an essential companion to the First Amendment’s explicit protections for freedom of speech, freedom of the press, and the right to “petition the Government for a redress of grievances.” Without the ability to freely join together with others—privately and voluntarily—citizens are less able to spur meaningful change.
In fact, our right to assemble goes to the heart of how Americans engage with the democratic process itself. At least, that was the conclusion the Supreme Court reached in 2010 in Citizens United v. FEC and again in the U.S. Court of Appeals for the District of Columbia Circuit in SpeechNow.org v. FEC.
(Unbeknownst to many, it is actually the latter case—SpeechNow—that is responsible for creating what are now known as “Super PACs.” David Keating, the lead individual plaintiff in the case and current president of the Institute for Free Speech, is known as the “Father of the Super PAC.”)
Could Super PACs be a “canary in the coal mine” for speech and assembly rights? Maybe.
They embody the practical exercise of the freedom to assemble in the political arena. Remember, before SpeechNow, wealthy individuals could spend unlimited amounts of their own money on independent political speech, but could not join with others of more modest means to pool their resources and speak together.
In other words, Super PACs are not primarily about “big money” in the abstract—Super PACs are about the right of citizens to associate freely to engage in core political speech.
But that hasn’t stopped opponents of speech and assembly rights from trying to weaken that right anyway.
For example, in 2024, Maine passed a ballot measure that imposed a $5,000 limit on contributions to Super PACs. Can constitutional rights be restricted if the majority agrees? Not if we can help it. The Institute for Free Speech’s attorneys represented a Maine group to challenge that new law and won in federal district court in Maine. The state appealed the ruling to the U.S. Court of Appeals for the First Circuit, and we expect that the court will hear the case soon.
This principle extends far beyond elections. If the tyranny of the majority can restrict how citizens band together to fund political messages, it sets a precedent that chills broader forms of association—from charitable nonprofits and advocacy groups to religious organizations and civic clubs.
As Joe Lonsdale said on an episode of the All-In Podcast, “If I want to pay people to get my point of view out into the public, and my point of view is related to an election or legislation, I should have that right.”
Opponents of free political speech have done their best to find ways to restrict it, which is why donor privacy has become a front-line issue in the battle for First Amendment rights. When they can’t shut down opposing viewpoints, they work to enact new laws forcing groups to disclose their funders. Their ultimate goal is to discourage donors from giving to disfavored organizations by using the lists to target some supporters for harassment, boycotts, or threats.
Just as the Supreme Court protected the NAACP membership lists in 1958 to prevent harassment and retaliation, strong donor privacy protections today shield individuals from social or professional backlash for supporting causes that may be unpopular in their community or workplace.
We’ve seen what can happen with this private information. Do you remember the “Tea Party Scandal” from 2013, when the IRS targeted conservative organizations for special scrutiny of their applications for tax-exempt status?
And it wasn’t just some rogue contractor like the “Littlejohn leak” of hundreds of thousands of personal income tax returns that happened a few years ago (though, that’s another example of why the IRS shouldn’t have these donor records either).
Rather, the IRS’s targeting during Lois Lerner’s tenure was another example of how the government can weaponize the information at its disposal to punish individuals and groups who choose to exercise associational and speech rights in ways officials dislike.
Institute for Free Speech attorneys are currently representing the Buckeye Institute, an Ohio think tank, which is challenging a law that requires the IRS to collect information on major donors. Fortunately, a district court judge ruled that he would apply “exacting scrutiny”—one of the highest judicial standards for evaluating whether a law violates the First Amendment—making it very difficult for the government to justify the law. Fearing a loss at trial, the IRS appealed the ruling, and the Sixth Circuit will soon resolve this vital question of judicial scrutiny for donor privacy in the tax context.
Free association only thrives when people feel safe joining groups. When fear of exposure or retaliation chills participation, the entire ecosystem of American civil society weakens.
In an era of cancel culture, doxxing, and polarized social media, many people don’t want their name attached to a cause that might draw hostility from neighbors, employers, or online mobs. This leads to a dangerous and pervasive discomfort with disagreement and a preference for controlled, “safe” expression over open association.
Nowhere is this more apparent than in our institutions of higher learning.
The Institute for Free Speech recently won a case on behalf of a student organization targeted by school administrators for disciplinary action. The group’s offense—expressing their opinions at a student club expo. The group’s president, an Iranian-born U.S. citizen, called illegal immigration a “cancer on society” and said that “Hamas is a terrorist group that should be eradicated.” Following the complaints, the college’s Director of Student Life told the group that they would face disciplinary action for continuing to express these views.
To make matters worse, when the student group’s president then reported that other students had directed vulgar personal attacks at him—including telling the Iranian-born American citizen to “Go back to your f*cking country”—that same administrator suggested that the students’ own “provocative language” triggered these personal attacks.
If that weren’t bad enough, even professors feel a need to self-censor. The Institute for Free Speech recently filed a petition with the U.S. Supreme Court to hear the case of UT Austin professor Richard Lowery, who faced a similar crackdown on his speech rights. Several ideologically diverse free speech organizations filed amicus (friend-of-the-court) briefs urging the Supreme Court to hear the case. Separately, a group of more than two dozen leading First Amendment scholars filed their own brief in support of the Court hearing Professor Lowery’s case.
The case involves university administrators who demanded that Lowery’s supervisor, Carlos Carvalho (now the President of the more speech-friendly UATX), force him to stop publicly criticizing the university’s DEI policies, critical-race theory initiatives, and lack of viewpoint diversity. When Carvalho refused, the administrators threatened Prof. Lowery’s job, pay, and Salem Center affiliation if he did not “tone it down.”As a result, Lowery went dark and stopped criticizing the UT administration in public, just like the deans had hoped he would. The Institute’s attorneys are representing him.
These cases and other work the Institute is doing confront a significant societal question: Have we lost our ability to tolerate differences, debate ideas, and solve problems?
I hope not.
But one way to help restore that ability is to redouble efforts to protect our First Amendment political speech rights, especially the right to assemble in groups.
Fully recognizing the importance of free speech and association rights may be the antidote we need to reverse these trends that keep us from living up to our most “American” trait—our ability to come together for the “Common Good.” So, go do the most American thing you can possibly do—join a group that is working to protect them. And I know just the one…
